While Facebook connects friends, there are also instances of insulting and defamatory statements being made public. It can be particularly disheartening if users activate the Facebook’s ‘like’ button in relation to such content. But what are the legal consequences of defamation of Facebook?

Defamation on Facebook

The number of cases which illustrate how Facebook can be used to disseminate defamatory material are growing. Stern TV recently highlighted a particularly tragic case.

A father took the life of his two children and then committed suicide. The distraught mother later discovered that a group on Facebook began to accuse her of murder. In reaction, the mother pressed charges for defamation.

False accusations of crime

The legal position here is clear. Before you accuse someone on Facebook of committing a crime, you should be sure of the facts.

The fundamental principle under German criminal law is ‘in dubio pro rea’ or in other words the presumption of innocence. This means that a person is considered to be innocent of a crime until they are proven guilty.

As a result of this principle, strict rules apply to the press when reporting on crimes and any possible suspects.

But the public too are not at liberty to freely publish information concerning suspects during a criminal investigation. After all, posts on Facebook are not private messages, but are public and can be quickly disseminated with widespread consequences. For this reason, publishing a suspect’s personal details, such as name, address and even a photo is prohibited. This protects the suspect’s personality rights.

On a civil law level, the person concerned can apply for an injunction and could claim compensation.

But publishing such information and assertions on Facebook also gives rise to criminal liability. Depending on their content, the statements could amount to insulting behaviour or even fulfil the elements for defamation.

Calls to lynch

Another particularly stark case of defamation on Facebook is that of a 17-year-old boy from Emden who was accused on Facebook of having murdered an 11 year old. Some of the Facebook commentators called for the boy to be lynched. They got off lightly and received only youth detention. In most cases, however, calling for the murder of a suspect can be severely punished.

Under § 111(1) German Criminal Code (Strafgesetzbuch, StGB) a person who publicly incites crime is treated under German criminal law as if they had aided and abetted the commission of the crime. In turn, a person who aids and abets the commission of a crime is liable in the same way as a perpetrator.

This means that had the alleged murderer of the 11 year-old-girl in fact been lynched to death as a result of such statements, the authors of the statements would have been liable for incitement to murder. Luckily, such events did not transpire.

Nevertheless, by inciting a crime, the authors of the statements could have been sentenced to up to 5 years in prison (§ 111(2) StGB).

Private criminal investigations

Linked to this topic is the question of conducting private criminal investigations on Facebook.

The use of Facebook to privately search for suspects of a crime is not permitted. This principle was reaffirmed after the owner of a Cologne kiosk posted a CCTV video of the kiosk being robbed by two masked men.

In accordance with § 131a and 131b of the German Criminal Procedure Rules, only the authorities may conduct criminal investigations and search for suspects.

This ensures that the personality rights of the alleged suspect are properly protected and reduces the risk, as in the Emden case, of innocent people being publicly defamed. Such CCTV videos and other potential evidence should always be handed to the police.

Liking defamatory statements

It is currently disputed in the courts whether “liking” a post of Facebook can be considered a defamatory statement.

An employment tribunal in Dessau supports this position. The judges ruled that by liking a defamatory Facebook post, the person who activates the like button adopts the content as if it were their own and is therefore legally liable as if they had posted the statement themselves. However, when calculating the level of compensation, consideration is given as to who published the statement in the first place.

There is however developing legal opinion that a person who likes a defamatory statement on Facebook should not be treated as if they published the statement. This position argues that liking statements is too spontaneous and lacking in thoughtful consideration.

Given the number of Facebook likes that are activated every day, this argument may well have some substance.

How to protect yourself against defamation on Facebook

There are now various effective ways of reacting to insulting or defamatory postings on Facebook.

The quickest way is to complain to Facebook. Once the company acquires knowledge of illegal content, it is obliged to remove it. Facebook now usually reacts within 24 hours to requests from lawyers to remove content.

Often, it is important to victims of defamatory statements to find the author of the statements. To achieve this, there is a possibility to press charges against an “unknown” person. The prosecution service is then entitled to retrieve from Facebook, the IP address of the author and possibly related content. It is relatively easy for prosecuting authorities to find authors of defamatory statements on Facebook as most people are registered with the social network under their real names.

If minors or youths are the authors of the defamatory statements, they could be punished with juvenile detention and could face compensation claims. Depending on how severe the psychological stress caused is, the compensation claims can amount to several thousands of euros plus the reimbursement of relevant medical care costs.

Conclusion

Posting defamatory statements on Facebook can give rise to both civil and criminal liability, especially if they falsely accuse a person of having committed a crime. Particularly severe criminal consequences are also attached to calls for vigilante justice.

The legal position on ‘liking’ defamatory content on Facebook is less clear. While this is the case, Facebook users should give careful consideration to which published content they ‘like’.

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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